Disqualification By Reason Of Death Or Insanity Of Adverse Party
This section is called "The Survivorship Disqualification Rule" or
"Dead Man Statute".
It constitutes only a partial disqualification as the witness is not
completely disqualified but is only prohibited from testifying on the
matters therein specified, unlike the marital disqualification rule
which is complete and absolute disqualification.
NOTE: This applies to both civil and criminal cases.
Requisites For The Application Of This Rule:
1. The witness offered for examination is a party plaintiff, or the
assignor of said party, or a person in whose behalf a case is
- Such plaintiff must be the real party in interest. This
disqualification does not apply where a counterclaim has been
interposed by the defendant as the plaintiff would thereby
be testifying in his defense. The same is true where the
deceased contracted with the plaintiff through an agent and
said agent is alive and can testify, but the testimony of the
plaintiff should be limited to acts performed by the agent.
- The term “assignor” of a party means assignor of a cause of
action which has arisen, and not the assignor of a right
assigned before any cause of action has arisen.
- A witness may testify against an estate, provided he is not a
party, or an assignor of a party, or a person in whose behalf
the suit is instituted. Interest in the outcome of the suit,
per se, seemingly, does not disqualify a witness from
2. The case is against the executor or administrator or other
representative of a person deceased or of unsound mind.
- The term “representative of a deceased person” has been
interpreted to include not only the executor or administrator
of a deceased person, but also the person who has succeeded
to the right of the deceased, whether by purchase or descent
or operation of law.
- It is necessary that the said defendant is being sued and
defends in such representative capacity and not in his
individual capacity. Even if the properties have been
judicially adjudicated to the heirs, they are still protected
under this rule against such prohibited testimony as they are
considered as the representatives of the deceased.
- The rule applies regardless of whether the deceased died
before or alter the suit against him is filed provided he is
already dead at the time the testimony is sought to be given.
3. The case is upon a claim or demand against the estate of such
person who is deceased or of unsound mind.
- The rule does not apply where it is administrator who brings
an action to recover property allegedly belonging to the
estate or the action is by the heirs of a deceased plaintiff
who were substituted for the latter.
- This is restricted to debts or demands enforceable by personal
actions upon which money judgments can be rendered.
- An action for damages for breach of agreement to devise
property for services
- Estate of a deceased person includes all properties, real and
personal, belonging to the deceased person.
4. The testimony to be given is on matter of fact occurring before
the death, of such deceased person or before such person became
of unsound mind.
- This includes any matter of fact which bears upon a transaction
or communication between the witness and the decedent, even
though without the presence or participation of the latter.
- Negative testimony, that the fact did not occur during the
life time of the deceased, is not covered by the prohibition.
- Testimony on the present possession by the witness of a
written instrument signed by the deceased is also not covered
by the prohibition, as such fact exists even after the
- The parties plaintiff to an action is not rendered incompetent
to testify to fraudulent transactions of the deceased, as
the rule is not designed to shield wrongdoers. But before
admitting the testimony of parties plaintiff in this kind of
action, the court should compel such parties to clearly
establish the alleged fraudulent acts.
In land registration case instituted by the decedent’s representatives,
this prohibition does not apply as the oppositors are considered
defendants and may therefore, testify against the petitioner. This
prohibition does not also apply in cadastral cases since there is no
plaintiff or defendants therein.
Since the purpose of this rule is to discourage perjury and protect
the estate from fictitious claims, the prohibition does not apply
even if all the 4 requisites above are present, where the testimony
is offered to prove a claim less than what is established under a
written document or is intended to prove a fraudulent transaction of
the deceased, provided such fraud is first established by evidence
This is designed to close the lips of the party as plaintiff when
the death has closed the lips of the party defendant. If the purpose
of the oral testimony is to prove a lesser claim than what might be
warranted by clear evidence, to avoid prejudice to the estate of the
deceased, the law has certainly no reason for its application.
When Deemed Waived
The disqualification under this rule is waived if the defendant
does not timely object to the admission of such evidence or testifies
on the prohibited matters or cross-examines thereon.
If the case is brought against the partnership of the deceased, the
witness is still credible because the testimony is not against the
deceased nor his estate.
Bar Exam Question 2001
Maximo filed an action against Pedro, the administrator of the estate
of deceased Juan, for the recovery of a car which is part of the
latter’s estate. During the trial, Maximo presented witness Mariano
who testified that he was present when Maximo and Juan agreed that
the latter would pay a rental of P20,000.00 for the use of Maximo’s
car for one month after which Juan should immediately return the car
to Maximo. Pedro objected to the admission of Mariano’s testimony.
If you were the judge, would you sustain Pedro’s objection? Why? (5%)
No, the testimony is admissible in evidence because witness
Mariano who testified as to what Maximo and Juan, the deceased
person agreed upon, is not disqualified to testify on the
agreement. Those disqualified are parties or assignors of
parties to a case, or persons in whose behalf a case is
prosecuted, against the administrator or Juan’s estate, upon a
claim or demand against his estate as to any matter of fact
occurring before Juan’s death. (Sec.23 of Rule 130)